Annotation 10 - Article III

Substantial Interest: Standing

Perhaps the most important element of the requirement of adverse parties may be found in the ''complexities and vagaries'' of the standing doctrine. ''The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.'' 322 The ''gist of the question of standing'' is whether the party seeking relief has ''alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.'' 323 This practical conception of standing has now given way to a primary emphasis upon separation of powers as the guide. ''[T]he 'case or controversy' requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are 'founded in concern about the proper - and properly limited - role of the courts in a democratic society.''' 324

Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions, 325 and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action. 326 As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to stiffen the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court's generalizations and the results it achieves are often at variance. 327

The standing rules apply to actions brought in federal courts, and they have no direct application to actions brought in state courts. 328

Citizen Suits .--Persons do not have standing to sue to enforce a constitutional provision when all they can show or claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I, Sec. 6, cl. 2, was denied standing. 329 ''The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract. . . . [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.'' 330

Taxpayer Suits .--Save for a narrowly cabined exception, standing is also lacking when a litigant attempts to sue to contest governmental action that he claims injures him as a taxpayer. In Frothingham v. Mellon, 331 the Court denied standing to a taxpayer suing to restrain disbursements of federal money to those States that chose to participate in a program to reduce maternal and infant mortality; her claim was that Congress lacked power to appropriate funds for those purposes and that the appropriations would increase her taxes in future years in an unconstitutional manner. Noting that a federal taxpayer's ''interest in the moneys of the Treasury . . . is comparatively minute and indeterminate'' and that ''the effect upon future taxation, of any payment out of the funds . . . [is] remote, fluctuating and uncertain,'' the Court ruled that plaintiff had failed to allege the type of ''direct injury'' necessary to confer standing. 332

Taxpayers were found to have standing, however, in Flast v. Cohen, 333 to contest the expenditure of federal moneys to assist religious-affiliated organizations. The Court asserted that the answer to the question whether taxpayers have standing depends on whether the circumstances of each case demonstrate that there is a logical nexus between the status asserted and the claim sought to be adjudicated. First, there must be a logical link between the status of taxpayer and the type of legislative enactment attacked; this means, a taxpayer must allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article I, Sec. 8, rather than also of incidental expenditure of funds in the administration of an essentially regulatory statute. Second, there must be a logical nexus between the status of taxpayer and the precise nature of the constitutional infringement alleged; this means, the taxpayer must show the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, rather than simply to argue the enactment is generally beyond the powers delegated to Congress. Both Frothingham and Flast met the first test, because they attacked a spending program. Flast met the second test, because the establishment clause of the First Amendment operates as a specific limitation upon the exercise of the taxing and spending power, while Frothingham had alleged only that the Tenth Amendment had been exceeded. Reserved was the question whether other specific limitations constrained the taxing and spending clause in the same manner as the establishment clause. 334

Since Flast, the Court has refused to expand it. Litigants seeking standing as taxpayers to challenge legislation permitting the CIA to withhold from the public detailed information about its expenditures as a violation of Article I, Sec. 9, cl. 7, and to challenge certain Members of Congress from holding commissions in the reserves as a violation of Article I, Sec. 6, cl. 2, were denied standing, in the former cases because their challenge was not to an exercise of the taxing and spending power and in the latter because their challenge was not to legislation enacted under Article I, Sec. 8, but rather was to executive action in permitting Members to maintain their reserve status. 335 An organization promoting church-state separation was denied standing to challenge an executive decision to donate surplus federal property to a church-related college, both because the contest was to executive action under a valid piece of legislation and because the property transfer was not pursuant to a taxing and spending clause exercise but was taken under the property clause of Article IV, Sec. 3, cl. 2. 336 It seems evident that for at least the foreseeable future taxpayer standing will be restricted to establishment clause limitations on spending programs.

Local taxpayers attacking local expenditures have generally been permitted more leeway than federal taxpayers insofar as standing is concerned. Thus, in Everson v. Board of Education, 337 such a taxpayer was found to have standing to challenge the use of public funds for transportation of pupils to parochial schools. 338 But in Doremus v. Board of Educ., 339 the Court refused an appeal from a state court for lack of standing of a taxpayer challenging Bible reading in the classroom. No measurable disbursement of public funds was involved in this type of activity, so that there was no direct injury to the taxpayer, a rationale similar to the spending program-regulatory program distinction of Flast.

Constitutional Standards: Injury in Fact, Causation, and Redressability .--While the Court has been inconsistent over time, it has now settled upon the rule that, ''at an irreducible minimum,'' the constitutional requisites under Article III for the existence of standing are that the party seeking to sue must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of defendant and that the injury is likely to be redressed by a favorable decision. 340

For some time, injury alone was not sufficient; rather, the injury had to be ''a wrong which directly results in the violation of a legal right,'' 341 that is, ''one of property, one arising out of contract, one protected against tortious invasion, or one founded in a statute which confers a privilege.'' 342 The problem was that the ''legal right'' language was ''demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.'' 343 The observable tendency of the Court, however, was to find standing frequently in cases distinctly not grounded in property rights. 344

In any event, the ''legal rights'' language has now been dispensed with. Rejection occurred in two administrative law cases in which the Court announced that parties had standing when they suffered ''injury in fact'' to some interest, ''economic or otherwise,'' that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in question. 345 Now, environmental, aesthetic, and social interests, when impaired, afford a basis for making constitutional attacks upon governmental action. 346 The breadth of the injury in fact concept may be discerned in a series of cases involving the right of private parties to bring actions under the Fair Housing Act to challenge alleged discriminatory practices. The subjective and intangible interests of persons in enjoying the benefits of living in integrated communities were found sufficient to permit them to attack actions which threatened or harmed those interests even though the actions were not directed at them. 347 Similarly, the interests of individuals and associations of individuals in using the environment afforded them the standing to challenge actions which threatened those environmental conditions. 348 Nonetheless, the Court has also in constitutional cases been wary of granting standing to persons who alleged threats or harm to interests which they shared with the larger community of people at large, a rule against airing ''generalized grievances'' through the courts, 349 although it is unclear whether this rule (or subrule) has a constitutional or a prudential basis. 350 And in a number of cases, the Court has refused standing apparently in the belief that the assertion of harm is too speculative or too remote to credit. 351

Of increasing importance are the second and third element of standing, recently developed and held to be of constitutional requisite. Thus, there must be a causal connection between the injury and the conduct complained of; that is, the Court insists that the plaintiff show that ''but for'' the action, she would not have been injured. And the Court has insisted that there must be a ''substantial likelihood'' that the relief sought from the court if granted would remedy the harm. 352 Thus, poor people who had been denied service at certain hospitals were held to lack standing to challenge IRS policy of extending tax benefits to hospitals that did not serve indigents, since they could not show that alteration of the tax policy would cause the hospitals to alter their policies and treat them. 353 Low-income persons seeking the invalidation of a town's restrictive zoning ordinance were held to lack standing, because they had failed to allege with sufficient particularity that the complained-of injury, inability to obtain adequate housing within their means, was fairly attributable to the ordinance instead of to other factors, so that voiding of the ordinance might not have any effect upon their ability to find affordable housing. 354 Similarly, the link between fully integrated public schools and allegedly lax administration of tax policy permitting benefits to discriminatory private schools was deemed too tenuous, the harm flowing from private actors not before the courts and the speculative possibility that directing denial of benefits would result in any minority child being admitted to a school. 355 But the Court did permit plaintiffs to attack the constitutionality of a law limiting the liability of private utilities in the event of nuclear accidents and providing for indemnification, on a showing that ''but for'' the passage of the law there was a ''substantial likelihood,'' based upon industry testimony and other material in the legislative history, that the nuclear power plants would not be constructed and that therefore the environmental and aesthetic harm alleged by plaintiffs would not occur; thus, a voiding of the law would likely relieve the plaintiffs of the complained of injuries. 356 Operation of these requirements makes difficult but not impossible the establishment of standing by persons indirectly injured by governmental action, that is, action taken as to third parties that is alleged to have as a consequence injured the claimants. 357

In a case permitting a plaintiff contractors' association to challenge an affirmative-action, set-aside program, the Court seemed to depart from several restrictive standing decisions in which it had held that the claims of attempted litigants were too ''speculative'' or too ''contingent.'' Supp.8 The association had sued, alleging that many of its members ''regularly bid on and perform construction work'' for the city and that they would have bid on the set-aside contracts but for the restrictions. The Court found the association had standing, because certain prior cases under the equal protection clause established a relevant proposition. ''When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The 'injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.'' Supp.9 The association, therefore, established standing by alleging that its members was able and ready to bid on contracts but that a discriminatory policy prevented them from doing so on an equal basis. Supp.10

Prudential Standing Rules .--Even when Article III constitutional standing rules have been satisfied, the Court has held that principles of prudence may counsel the judiciary to refuse to adjudicate some claims. 358 With respect to the prudential rules, it is clear that the Court feels free to disregard any of these principles in cases in which it thinks exceptionable circumstances exists, 359 and Congress is free to legislate away prudential restraints upon the Court's jurisdiction and confer standing to the furtherest extent permitted by Article III. 360 The Court has identified three rules as prudential ones, 361 only one of which has been a significant factor in the jurisprudence of standing. The first two rules are that the plaintiff's interest, to which she asserts an injury, must come within the ''zone of interest'' arguably protected by the constitutional provision or statute in question 362 and that plaintiffs may not air ''generalized grievances'' shared by all or a large class of citizens. 363 The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court.

Standing to Assert the Constitutional Rights of Others .-- Usually, one may assert only one's interest in the litigation and not challenge the constitutionality of a statute or a governmental action because it infringes the protectable rights of someone else. 364 In Tileston v. Ullman, 365 an early round in the attack on a state anticontraceptive law, a doctor sued, charging that he was prevented from giving his patients needed birth control advice. The Court held he had no standing; no right of his was infringed, and he could not represent the interests of his patients. But there are several exceptions to this part of the standing doctrine that make generalization misleading. Many cases allow standing to third parties if they demonstrate a requisite degree of injury to themselves and if under the circumstances the injured parties whom they seek to represent would likely not be able to assert their rights. Thus, in Barrows v. Jackson, 366 a white defendant who was being sued for damages for breach of a restrictive covenant directed against African Americans--and therefore able to show injury in liability for damages--was held to have standing to assert the rights of the class of persons whose constitutional rights were infringed. 367 Similarly, the Court has permitted defendants who have been convicted under state law--giving them the requisite injury--to assert the rights of those persons not before the Court whose rights would be adversely affected through enforcement of the law in question. 368 In fact, the Court has permitted persons who would be subject to future prosecution or future legal action--thus satisfying the injury requirement--to represent the rights of third parties with whom the challenged law has interfered with a relationship. 369 It is also possible, of course, that one's own rights can be affected by action directed at someone from another group. 370

A substantial dispute was occasioned in Singleton v. Wulff, 371 over the standing of doctors, who were denied Medicaid funds for the performance of abortions not ''medically indicated,'' to assert the rights of absent women to compensated abortions. All the Justices thought the Court should be hesitant to resolve a controversy on the basis of the rights of third parties, but they divided with respect to the standards exceptions. Four Justices favored a lenient standard, permitting third party representation when there is a close, perhaps confidential, relationship between the litigant and the third parties and when there is some genuine obstacle to third party assertion of their rights; four Justices would have permitted a litigant to assert the rights of third parties only when government directly interdicted the relationship between the litigant and the third parties through the criminal process and when litigation by the third parties is in all practicable terms impossible. 372

Following Wulff, the Court emphasized the close attorney-client relationship in holding that a lawyer had standing to assert his client's Sixth Amendment right to counsel in challenging application of a drug-forfeiture law to deprive the client of the means of paying counsel. 373 However, a ''next friend'' whose stake in the outcome is only speculative must establish that the real party in interest is unable to litigate his own cause because of mental incapacity, lack of access to courts, or other disability. 374

A variant of the general rule is that one may not assert the unconstitutionality of a statute in other respects when the statute is constitutional as to him. 375 Again, the exceptions may be more important than the rule. Thus, an overly broad statute, especially one that regulates speech and press, may be considered on its face rather than as applied, and a defendant to whom the statute constitutionally applies may be enabled to assert its unconstitutionality thereby. 376

Organizational Standing .--Organizations do not have standing as such to represent their particular concept of the public interest, 377 but organizations have been permitted to assert the rights of their members. 378 In Hunt v. Washington State Apple Advertising Comm., 379 the Court promulgated elaborate standards, holding that an organization or association ''has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.'' Similar considerations arise in the context of class actions, in which the Court holds that a named representative with a justiciable claim for relief is necessary when the action is filed and when the class is certified, but that following class certification there need be only a live controversy with the class, provided the adequacy of the representation is sufficient. 380

Standing of States to Represent Their Citizens .--The right of a State to sue as parens patriae, in behalf of its citizens, has long been recognized. 381 No State, however, may be parens patriae of her citizens ''as against the Federal Government.'' 382 But a State may sue on behalf of the economic welfare of its citizens to protect them from environmental harm 383 and to enjoin other States and private parties from engaging in actions harmful to the economic or other well- being of its citizens. 384 The State must be more than a nominal party without a real interest of its own, merely representing the interests of particular citizens who cannot represent themselves; 385 it must articulate an interest apart from those of private parties that partakes of a ''quasi-sovereign interest'' in the health and well-being, both physical and economic, of its residents in general, although there are suggestions that the restrictive definition grows out of the Court's wish to constrain its original jurisdiction and may not fit such suits brought in the lower federal courts. 386

Standing of Members of Congress .--The lower federal courts have of late developed a body of law with respect to the standing of Members of Congress, as Members, to bring court actions, usually to challenge actions of the executive branch. Most of the law has developed in the District of Columbia Circuit, 387 and the Supreme Court has yet to consider the issue on the merits. 388 It seems clear that a legislator ''receives no special consideration in the standing inquiry,'' 389 and that he, along with every other person attempting to invoke the aid of a federal court, must show ''injury in fact'' as a predicate to standing. What that injury in fact may consist of, however, is the basis of the controversy.

A suit by Members for an injunction against continued prosecution of the Indochina war was held maintainable on the theory that if the court found the President's actions to be beyond his constitutional authority, the holding would have a distinct and significant bearing upon the Members' duties to vote appropriations and other supportive legislation and to consider impeachment. 390 The breadth of this rationale was disapproved in subsequent cases. The leading decision is Kennedy v. Sampson, 391 in which a Member was held to have standing to contest the alleged improper use of a pocket veto to prevent from becoming law a bill the Senator had voted for. Thus, Congressmen were held to have a derivative rather than direct interest in protecting their votes, which was sufficient for standing purposes, when some ''legislative disenfranchisement'' occurred. 392 In a comprehensive assessment of its position, the Circuit distinguished between (1) a diminution in congressional influence resulting from executive action that nullifies a specific congressional vote or opportunity to vote in an objectively verifiable manner, which will constitute injury in fact, and (2) a diminution in a legislator's effectiveness, subjectively judged by him, resulting from executive action, such a failing to obey a statute, where the plaintiff legislator has power to act through the legislative process, in which injury in fact does not exist. 393 Having thus established a fairly broad concept of Member standing, the Circuit then proceeded to curtail it by holding that the equitable discretion of the court to deny relief should be exercised in many cases in which a Member had standing but in which issues of separation of powers, political questions, and other justiciability considerations counseled restraint. 394 The status of this issue thus remains in confusion.

Standing to Challenge Nonconstitutional Governmental Action .-- Standing in this sense has a constitutional content to the degree that Article III requires a ''case'' or ''controversy,'' necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue ''in an adversary context and in a form historically viewed as capable of judicial resolution.'' 395 Liberalization of the law of standing in this field has been notable. The ''old law'' required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a ''legal wrong,'' that is, ''the right invaded must be a legal right,'' 396 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient.

A ''legal right'' could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it; 397 or it could be a right created by the Constitution or a statute. 398 The statutory right most relied on was the judicial review section of the Administrative Procedure Act, which provided that ''[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.'' 399 Early decisions under this statute interpreted the language as adopting the ''legal interest'' and ''legal wrong'' standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones. 400

More recently, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing. 401 Of even greater importance was the expansion of the nature of the injury required beyond economic injury, which followed logically to some extent from the revision of the standard, to encompass ''aesthetic, conservational, and recreational'' interests as well. 402 ''Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.'' 403 Thus, plaintiffs, who had pleaded that they used the natural resources of the Washington area, that rail freight rates would deter the recycling of used goods, and that their use of natural resources would be disturbed by the adverse environmental impact caused by the nonuse of recyclable goods, had standing as ''persons aggrieved'' to challenge the rates set. Neither the large numbers of persons allegedly injured nor the indirect and less perceptible harm to the environment was justification to deny standing. The Court granted that the plaintiffs might never be able to establish the ''attenuated line of causation'' from rate setting to injury, but that was a matter for proof at trial, whereas in the instant case the Court dealt only with the pleadings. 404

Much debate has occurred in recent years with respect to the validity of ''citizen suit'' provisions in the environmental laws, especially in light of the Court's retrenchment in constitutional standing cases. The Court in insisting on injury in fact as well as causation and redressability has curbed access to citizen suits, 405 but that Congress may expansively confer substantial degrees of standing through statutory creations of interests remains true.

Footnotes

[Footnote 322] Flast v. Cohen, 392 U.S. 83, 99 (1968). That this characterization is not the view of the present Court, see Allen v. Wright, 468 U.S. 737, 750 , 752, 755-756, 759-761 (1984). In taxpayer suits, it is appropriate to look to the substantive issues to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. Id., 102; United States v. Richardson, 418 U.S. 166, 174 -175 (1974); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 78 -79 (1978).

[Footnote 323] Baker v. Carr, 369 U.S. 186, 204 (1962). That persons or organizations have a personal, ideological interest sufficiently strong to create adverseness is not alone enough to confer standing; rather, the adverseness is the consequence of one being able to satisfy the Article III requisite of injury in fact. Valley Forge Christian College v. Americans United, 454 U.S. 464, 482 -486 (1982); Schlesinger v. Reservists Com. to Stop the War, 418 U.S. 208, 225 -226 (1974). Nor is the fact that if plaintiffs have no standing to sue, no one would have standing, a sufficient basis for finding standing. Id., 227.

[Footnote 324] Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). All the standards relating to whether a plaintiff is entitled to adjudication of his claims must be evaluated ''by reference to the Art. III notion that federal courts may exercise power only in the last resort, and as a necessity,' . . . and only when adjudication is 'consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.''' Id., 752 (quoting, respectively, Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892), and Flast v. Cohen, 392 U.S. 83, 97 (1968)). For the strengthening of the separation-of-powers barrier to standing, see Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2135-2136, 2142-2146 (1992).

[Footnote 327] ''[T]he concept of 'Art. III standing' has not been defined with complete consistency in all of the various cases decided by this Court . . . [and] this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition.'' Valley Forge Christian College v. Americans United, 454 U.S. 464, 475 (1982). ''Generalizations about standing to sue are largely worthless as such.'' Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151 (1970). For extensive consideration of the doctrine, see Hart & Wechsler, op. cit., n.250, 107-196.

[Footnote 328] Thus, state courts could adjudicate a case brought by a person without standing in the federal sense. If the plaintiff lost, he would have no recourse in the United States Supreme Court, inasmuch as he lacks standing, Tileston v. Ullman, 318 U.S. 44 (1943); Doremus v. Board of Education, 342 U.S. 429 (1952), but if plaintiff prevailed, the losing defendant may be able to appeal, because he might well be able to assert sufficient injury to his federal interests. ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).

[Footnote 345] Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The ''zone of interest'' test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the language. Thus, in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992), the Court refers to injury in fact as ''an invasion of a legally-protected interest,'' but in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations.

[Footnote 348] Sierra Club v. Morton, 405 U.S. 727, 735 (1972); United States v. SCRAP, 412 U.S. 669, 687 -688 (1973); Duke Power Co., v. Carolina Environmental Study Group, 438 U.S. 59, 72 -74 (1978). But the Court has refused to credit general allegations of injury untied to specific governmental actions. E.g., Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). In particular, SCRAP, supra, is disfavored as too broad. Lujan v. Defenders of Wildlife, supra, 2139-2140. Moreover, unlike the situation in taxpayer suits, there is no requirement of a nexus between the injuries claimed and the constitutional rights asserted. In Duke Power, supra, 78-81, claimed environmental and health injuries grew out of construction and operation of nuclear power plants but were not directly related to the governmental action challenged, the limitation of liability and indemnification in cases of nuclear accident. See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 264 -265 (1991).

[Footnote 351] E.g. Laird v. Tatum, 408 U.S. 1 (1972) (''allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.''). See also O'Shea v. Littleton, 414 U.S. 488 (1974); California Bankers Assn. v. Schultz, 416 U.S. 21 (1974); Rizzo v. Goode, 423 U.S. 262, 371 - 373 (1976). In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court held that victim of police chokehold seeking injunctive relief was unable to show sufficient likelihood of recurrence as to him.

[Footnote 352] Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO Inc. v. Kadish, 490 U.S. 605, 612 -617 (1989) (plurality opinion). Although the two tests were initially articulated as two facets of a single requirement, the Court now insists they are separate inquiries. Id., 468 U.S., 753 n. 19. ''To the extent there is a difference, it is that the former examines a causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested.'' Id.

[Footnote 353] Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). See also Linda R.S. v. Richard D., 410 U.S. 614 (1973) (mother of illegitimate child lacked standing to contest prosecutorial policy of utilizing child support laws to coerce support of legitimate children only, since it was ''only speculative'' that prosecution of father would result in support rather than jailing).

[Footnote 354] Warth v. Seldin, 422 U.S. 490 (1975). But in Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 264 (1974), a person who alleged he was seeking housing in the community and that he would qualify if the organizational plaintiff were not inhibited by allegedly racially discriminatory zoning laws from constructing housing for low-income persons like himself was held to have shown a ''substantial probability'' that voiding of the ordinance would benefit him.

[Footnote 355] Allen v. Wright, 468 U.S. 737 (1984). But compare Heckler v. Mathews, 465 U.S. 728 (1984), where persons denied equal treatment in conferral of benefits were held to have standing to challenge the treatment, although a judicial order could only have terminated benefits to the favored class. In that event, members would have secured relief in the form of equal treatment, even if they did not receive benefits. And see Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987); Orr v. Orr, 440 U.S. 268, 271 -273 (1979).

[Footnote 8 (1996 Supplement)] Thus, it appears that had the Court applied its standard in the current case, the results would have been different in such cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); and Allen v. Wright, 468 U.S. 737 (1984).

[Footnote 10 (1996 Supplement)] 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), in which the Court, over the dissent's reliance on Jacksonville, id. at 81-2, denied the relevance of its distinction between entitlement to a benefit and equal treatment. Id. at 58 n.19.

[Footnote 358] Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 -100 (1979) (''a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim'').

[Footnote 360] ''Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. III's requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.'' Warth v. Seldin, 422 U.S. 490, 501 (1975). That is, the actual or threatened injury required may exist solely by virtue of ''statutes creating legal rights, the invasion of which creates standing, even though no injury would exist without the statute.'' Linda R.S. v. Richard D., 410 U.S. 614, 617 n. 3 (1973); O'Shea v. Littleton, 414 U.S. 488, 493 n. 2 (1974). Examples include United States v. SCRAP, 412 U.S. 669 (1973); Trafficante v. Metropolitan Life Ins. Co ., 409 U.S. 205 (1972); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979). See also Buckley v. Valeo, 424 U.S. 1, 8 n. 4, 11-12 (1976). For a good example of the congressionally- created interest and the injury to it, see Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 -375 (1982) (Fair Housing Act created right to truthful information on availability of housing; black tester's right injured through false information, but white tester not injured because he received truthful information). It is clear, however, that the Court will impose separation-of-powers restraints on the power of Congress to create interests to which injury would give standing. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2142-2146 (1992).

[Footnote 365] 318 U.S. 44 (1943). See Warth v. Seldin, 422 U.S. 490, 508 - 510 (1975) (challenged law did not adversely affect plaintiffs and did not adversely affect a relationship between them and persons they sought to represent).

[Footnote 367] See also Buchanan v. Warley, 245 U.S. 60 (1917) (white plaintiff suing for specific performance of a contract to convey property to a Negro had standing to contest constitutionality of ordinance barring sale of property to African Americans, inasmuch as black defendant was relying on ordinance as his defense); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) (white assignor of membership in discriminatory private club could raise rights of black assignee in seeking injunction against expulsion from club).

[Footnote 368] E.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (persons convicted of prescribing contraceptives for married persons and as accessories to crime of using contraceptives have standing to raise constitutional rights of patients with whom they had a professional relationship; while use of contraceptives was a crime, it was doubtful any married couple would be prosecuted so that they could challenge the statute); Eisenstadt v. Baird, 405 U.S. 438 (1972) (advocate of contraception convicted of giving device to unmarried woman had standing to assert rights of unmarried persons denied access; unmarried persons not subject to prosecution and were thus impaired in ability to obtain them or gain forum to assert rights).

[Footnote 369] E.g., Doe v. Bolton, 410 U.S. 179, 188 -189 (1973) (doctors have standing to challenge abortion statute since it operates directly against them and they should not have to await criminal prosecution in order to determine their validity); Planned Parenthood v. Danforth, 428 U.S. 52, 62 (1976) (same); Craig v. Boren, 429 U.S. 190, 192 -197 (1976) (licensed beer distributor could contest sex discriminatory alcohol laws because it operated on him, he suffered injury in fact, and was ''obvious claimant'' to raise issue); Carey v. Population Services Intl., 431 U.S. 678, 682 -684 (1977) (vendor of contraceptives had standing to bring action to challenge law limiting distribution). Older cases support the proposition. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Bantam Books v. Sullivan, 372 U.S. 58 (1963).

[Footnote 370] Holland v. Illinois, 493 U.S. 474 (1990) (white defendant had standing to raise a Sixth Amendment challenge to exclusion of blacks from his jury, since defendant had a right to a jury comprised of a fair cross section of the community).

[Footnote 386] Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 -608 (1982). Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, argued that the Court's standards should apply only in original actions and not in actions filed in federal district courts, where, they contended, the prerogative of a State to bring suit on behalf of its citizens should be commensurate with the ability of private organizations to do so. Id., 610. The Court admitted that different considerations might apply between original actions and district court suits. Id., 603 n. 12.

[Footnote 388] In Coleman v. Miller, 307 U.S. 433, 438 (1939), the Court recognized that legislators can in some instances suffer an injury in respect to the effectiveness of their votes that will confer standing. In Pressler v. Blumenthal, 434 U.S. 1028 (1978), affg. 428 F. Supp. 302 (D.D.C. 1976) (three-judge court), the Court affirmed a decision in which the lower court had found Member standing but had then decided against the Member on the merits. The ''unexplicated affirmance'' could have reflected disagreement with the lower court on standing or agreement with it on the merits. Note Justice Rehnquist's appended statement. Ibid. In Goldwater v. Carter, 444 U.S. 996 (1979), the Court vacated a decision, in which the lower Court had found Member standing, and directed dismissal, but none of the Justices who set forth reasons addressed the question of standing. The opportunity to consider Member standing was strongly pressed in Burke v. Barnes, 479 U.S. 361 (1987), but the expiration of the law in issue mooted the case.

[Footnote 391] 511 F.2d 430 (D.C.Cir. 1974). In Barnes v. Kline, 759 F.2d 21 (D.C.Cir. 1985), the court again found standing by Members challenging a pocket veto, but the Supreme Court dismissed the appeal as moot. Sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Whether the injury was the nullification of the past vote on passage only or whether it was also the nullification of an opportunity to vote to override the veto has divided the Circuit, with the majority favoring the broader interpretation. Goldwater v. Carter, 617 F.2d 697, 702 n. 12 (D.C.Cir.), and id., 711-712 (Judge Wright), vacated and remanded with instructions to dismiss, 444 U.S. 996 (1979)

[Footnote 395] Assn. of Data Processing Service Org. v. Camp, 397 U.S. 150, 151 -152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). ''But where a dispute is otherwise justiciable, the question whether the litigant is a 'proper party to request an adjudication of a particular issue,' [quoting Flast, supra, 100], is one within the power of Congress to determine.'' Sierra Club v. Morton, 405 U.S. 727, 732 n. 3 (1972).

[Footnote 397] Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of ''legal right'' as ''one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.'' Tennessee Power Co. v. TVA, 306 U.S. 118, 137 -138 (1939).

[Footnote 398] Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a ''person aggrieved'' within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to ''aggrieve'' a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707 (1943).

[Footnote 403] Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a ''representative of the public interest,'' as a ''private attorney general,'' so that he may contest not only the action which injures him but the entire complex of actions of which his injury-inducing action is a part. Id., 737-738, noting Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties).